Fighting To Choose

An excerpt from Alison McCulloch’s new book about the battle for abortion rights in New Zealand
by Alison McCulloch

Alison McCulloch’s new book “Fighting to Choose: The Abortion Rights Struggle in New Zealand” (Victoria University Press) is being released in May. This abridged excerpt from Chapter 4 of the book looks at the opening in 1974 of the Auckland Medical Aid Trust’s abortion clinic, a move that sparked a political firestorm culminating in the passage in 1977 of the Contraception, Sterilisation and Abortion Act and its amendments to the Crimes Act – the laws that govern abortion access today.

On 17 May 1974, in a refitted residential house in the Auckland suburb of Remuera, the non-profit Auckland Medical Aid Trust opened New Zealand’s first abortion clinic. For $80, it provided women who met the legal criteria with counselling and pregnancy termination. The clinic represented a sea change for women, as well as for their doctors, who offered at least tacit support by referring patients there in significant numbers. Yet perhaps nowhere was the change wrought by the clinic more strongly felt than in the corridors of power.

The influence of Spuc (the Society for the Protection of the Unborn Child) in Parliament had been steadily rising – from 13 MPs among its membership in 1971 to 32 by 1974 – and the organisation was confident it had all but achieved its goal of ensuring no law like Britain’s 1967 Abortion Act, which eased the grounds for abortions, would be passed in New Zealand. The opening of the clinic changed all that. Suddenly, the strategy of fighting to retain the status quo didn’t look like such a winner. As for the politicians themselves, they had long known that New Zealand’s abortion legislation was unclear and confusing (at the start of the 1970s, only 35 percent of doctors could correctly state the basis of the law), but that was acceptable to the legislature so long as nothing disturbed the established order. When the clinic opened its doors, lawmakers who had themselves resisted calls for action were stunned to find their role had been usurped by a group of unelected doctors, lawyers, accountants, feminists and other pro-reform supporters.

One of the driving forces behind the establishment of AMAC (the Auckland Medical Aid Centre, as the Trust’s clinic was known) was the doctor who would become its first medical director, Rex Hunton. A warm, energetic man with a lifelong commitment to community health initiatives, Hunton was moved to act by his experiences at the public health clinic he and Felix Donnelly had set up at the Auckland Medical School, which became known as the Pink Cottage. ‘Send us your difficult patients,’ Hunton and Donnelly had told Auckland GPs, and the GPs did.

Photo credit: The Dominion Post / Fairfax

‘Two types of patients came to us in great numbers,’ Hunton [pictured left] said. ‘The first group were those who were unhappily pregnant and the second group were homosexual people that were in trouble in one way or another.’ Acts of a homosexual nature between males was still a criminal offence in New Zealand – this wouldn’t change until 1986 – and gays faced widespread overt and covert hostility. At the Pink Cottage, Donnelly took those patients on, and eventually also their cause, a stance that raised the ire of his church and cost him his teaching ministry and authority to celebrate Mass.

With Donnelly fully occupied, the pregnant women were seen by Hunton – around 500 in the three years to 1974. ‘I heard these horrible stories, one after the other,’ he said. ‘A husband that bashes them, husband they’re not sure they love, a guy that raped them – terrible stories – or financial difficulties. All kinds of stories. Horror.’ Then there were the stories of how, in the absence of a legal option, these women (like those who gave testimony at the 1975 Tribunal on Crimes Against Women event put on by the Women’s National Abortion Action Campaign) tried to self-abort. For the 1975-77 Royal Commission of Inquiry into Contraception, Sterilisation and Abortion, Hunton compiled a list of the methods his patients told him they had used, most of them, he said, unsuccessfully:

At the Pink Cottage, Hunton began to refer these women to the local public hospital, National Women’s, for abortions. ‘I spent a long time with the patients and wrote long reports and sent them off and they’d just come back: “abortion denied.”’

The process for getting an abortion at National Women’s was arduous, and involved being questioned by one of the hospital’s ‘medical termination committees’, usually comprising two to three gynecologists, who might also request reports from psychiatrists or social workers ‘concerning the woman’s social background’. At one unidentified major hospital, this cumbersome system meant the waiting period from time of referral until assessment by a committee was one month.

Photo credit: G M Cookson

Other hospitals had equally onerous approval procedures. A Dunedin GP who testified at the November 1975 trial of the AMAC doctor, Jim Woolnough, described the process at his local hospital: ‘The Dunedin Hospital requires four doctors, a letter of recommendation from a specialist and the gynaecologist who would agree to do it. He might not also do it even if recommended. The Medical Superintendent must also agree, and even then he takes advice from the Board of Solicitors.’ Herbert Green, an ob-gyn professor at Auckland University who opposed abortion and also worked at National Women’s, said that the hospital rejected 50 percent of women referred there for abortions, and performed up to 20 terminations a month. (To get an idea of how these numbers compared with demand, in its first 15 weeks of operating, AMAC carried out nearly 450 abortions.)

Wayne Facer of the Abortion Law Reform Association of New Zealand (Alranz) remembers the desperation that marked the years before the clinic opened. Immediately after Alranz was formed in 1971, the group became a kind of ad hoc referral and advice service for distressed women and their families, even though its members had nowhere to send them. Those old moral panics and concerns about ‘race suicide’ had left a hangover of conservatism that kept contraception from women who needed it, then barred them from having abortions when they became pregnant.

Hilary Weeks, a GP and family planning doctor who moved to New Zealand with her physician husband in September 1972, was shocked when she first encountered the contraception restrictions. ‘When I did my first family planning clinic, I was faced by a 15-year-old girl with a 9-month old baby on her lap,’ Weeks said. ‘She wanted to take the Pill so I started to write the prescription, and the Kiwi nurse sort of whispered in my ear, ‘Dr Weeks, I’m afraid that that is illegal in this country. You cannot prescribe to the under 16s’. I just stopped for a second, and continued writing out the prescription because there was no way I, ethically, could deprive her of contraception, and I think that was the first time I ever broke any medical law.’

Weeks, who later became involved in both Alranz and AMAC, said she did that many times before the law changed. ‘I did it for one under-16 year old girl and her father found out. And he was very angry and he wrote an affidavit which was read out in Parliament by somebody who was anti-contraception and anti-abortion, and I was just waiting for the Medical Council to jump on me or for someone to bring a court case, but nobody did,’ she said. ‘Years later he brought his second daughter to me and apologised for having made all this fuss, and by that time it was legal for me to prescribe to the under-16s.’

The more publicity Alranz got about its campaigns, the more letters and calls from desperate women it received. In 1973, president Isabel Stanton said she took at least one phone call a day from a pregnant woman seeking an abortion, and that a GP she knew reported receiving around seven each day. Alranz’s files were stuffed full of pleas, like that of a 40-year-old farmer’s wife with four children: ‘My husband would take me to Australia for a legal? [sic] abortion but we just don’t know where to start. He can’t think of anything but his sheep at the moment anyway. Can you help us?’; or from a single mother: ‘Dear Sir or madam, Having heard about your association has given me new hope. I am a solo parent and have four children and have now missed my period. … I have been to my doctor but he was not of much assistance. I cannot afford another baby’; and the parent of a teenager: ‘I’m writing on behalf of my son (18) who has got his girl (17) pregnant. … I read your article in the Sunday Times and thought you people would be the most likely ones to offer some urgently needed advice.’

Alranz did what it could, explaining the legal situation and outlining the possible options, trying always to stay within what it understood to be the law. ‘The saddest part of the year’s work,’ the association wrote in its first annual report, ‘has been answering the large number of men and women who have come to us for help about an unwanted pregnancy’. It continued:

When we hear of a family selling their house to send the woman back home to England because another pregnancy is intolerable, and then hear of another woman in almost identical circumstances getting an abortion at a Public Hospital at no cost to the family, we realise that education of the doctors as to what is the practice of their fellow practitioners is of prime importance. We are not so naïve as to believe that the law is always strictly fair, but it is impossible to find any other area covered by our criminal code, where the practice is so varied, with such far reaching results in human misery.

At least in its early years, Alranz officially opposed giving direct advice or pointing women in the direction of sympathetic doctors, in large part for fear of prosecution. But there were frequent debates on the question. Facer argued that the information the group was gathering could and should be used positively. He knew, for example, ‘that there were two committees at National Women’s and they met on different days of the week and if the poor person got referred to the A Team on the first day the situation was hopeless but if they got to the B Team that met on a Thursday the probability was good.’

Photo credit: Socialist Action

If the public hospital route failed for women seeking abortions in the years before the clinic opened – and it usually did – there were still private practitioners. They cost around $250 to $300, and used much more intrusive methods than those pioneered at AMAC, including hysterotomy, a procedure akin to abortion by Caesarean section. Although the private hospitals tended to be more liberal than the public ones in interpreting the law, approval was by no means guaranteed and a woman needed a physician willing and able to make a referral. AMAT estimated that private hospitals in New Zealand were carrying out at least 1,500 abortions a year in the early 1970s, sometimes openly, sometimes less so, under the guise of ‘Examination Under General Anaesthetic’ or ‘Diagnostic D&C’.

If turned away by both public and private hospitals, the next safest option was a trip to Australia (or farther afield, to Japan, Britain or the United States), although this was much more costly. Abortion was not a notifiable procedure until 1975, so precise figures on how many New Zealand women were having abortions, and where, are hard to come by. AMAT estimated that before its clinic opened, 5,000 to 9,000 legal abortions a year were performed on New Zealand women – nearly two thirds of them in Australia, just under one third in private hospitals and the remainder in New Zealand’s public hospitals.

The Australian trade was frequently in the news, with Sunday News reporting in November 1970 (below the headline ‘Kiwi Birds Drop Down South’) that New Zealand women travelling to South Australia for abortions had helped to almost triple the numbers there. The article quoted an Adelaide GP, who said that ‘quite a number of female patients who have come to me for abortions have been from New Zealand’.

The conservatism of public hospitals helped push Hunton to start referring women across the Tasman for abortions, specifically to the Arncliffe clinic in Sydney. But he had reservations. ‘It was an unsatisfactory clinic in my mind even though it was doing abortions,’ he said. ‘They had some mattresses on the floor because they were overloaded. Some had to lie down on the floor after the process. The counselling was not always satisfactory.’ For Hunton, AMAC represented the chance to do everything right for the patient – the best counselling, the most up-to-date procedures, and the lowest possible cost.

Although Hunton was not a member of Alranz at the time the clinic was set up, other key players, like Anna Watson and Stanton, were. The association had realised, Facer said, that getting the law changed was going to be a long road. ‘The English model wasn’t going to happen. We weren’t going to get a private member [of Parliament] like David Steel to get a law passed. We also looked at what was going on in Australia where change had happened through the courts rather than through Parliament.’ Spuc seemed to agree: ‘The Abortion Law Reform people, having seen through the horrifying example of the United Kingdom that they cannot win through Parliamentary change, have now forced abortion on demand on New Zealand by opening this clinic in Auckland.’

Photo credt: Dominion Post / Alexander Turnbull Library

The first onslaught against AMAC came quickly. Barely two months after the clinic opened its doors, a high-powered Spuc delegation (including Drs Diana Mason and Keith Drayton, Professor William Liley and Des Dalgety) met for two hours with Prime Minister Norman Kirk and his ministers of justice and health. What Spuc presented to Kirk at that meeting were the results of a legal investigation into what could be done about AMAC. The best action Parliament could take, Spuc believed, was an amendment to the Hospitals Act, restricting all abortions to public hospitals.

The proposal was a shrewd one. It would simply and effectively close the clinic down without giving the perception that Spuc was trying to ban abortions. The case for the change could be built around concern for women’s health; the clinic, because it did not keep patients overnight and so was not considered a hospital, fell outside health department licensing requirements. Spuc could insist that women needed more safeguards, as well as protection from the ‘exploitation’ of fee-charging private operators. These arguments would be supplemented with the carefully expressed moral concern that if private clinics like AMAC were allowed to proliferate, New Zealand would have ‘abortion on demand’ by stealth. The amendment proposal was also consistent with Spuc’s focus on maintaining the status quo – a tacit acknowledgment that it was unlikely to have the political or public support for rollbacks in abortion law. After the meeting, however, Kirk had doubts. Despite his personal opposition to abortion, he was said to have been suspicious of Spuc’s motives, and quietly shelved the matter by asking his health and justice departments to look into it and report back.

When it became clear to Spuc that Kirk was not going to take immediate action on the clinic, it moved to have the amendment implemented through a private member’s bill. The man chosen to lead the charge was the Labour MP (and Spuc member) Dr Gerard Wall. ‘There was no one who stood taller,’ Marilyn Pryor wrote, ‘than the doctor turned politician who first carried the banner into Parliament.’ Wall’s Hospitals Amendment Bill was introduced on 30 August 1974, just a few months after the clinic had opened. Widely referred to as the Wall Bill or, more colourfully by pro-choice physician and activist Erich Geiringer, as ‘the Knitting Needle Bill’ (Geiringer wrote an accompanying ‘Knitting Needle’ song, which he sang on his Radio Windy talkback show), it won strong support at its first reading. The timing, however, turned out to be the worst possible – the day after its introduction, Kirk, who had been ailing for some time, died. The Wall Bill wouldn’t reappear until April 1975.

Curiously, the bill raised hopes in the pro-choice movement by galvanizing opposition to Spuc and support for reform. Along with the usual players – Alranz, Wonaac, women’s groups, students’ associations and civil liberties groups – opposition to the bill also came from the establishment, including the Medical Association, the Council of the New Zealand Obstetrical and Gynaecological Society, the General Practitioners Society and even the New Zealand Herald’s editorial page. Protest meetings were held throughout the country, drawing good crowds – more than 500 people in each of Auckland and Wellington, and at least 200 in Christchurch. Letters and telegrams opposing the bill flooded politicians’ offices, and Alranz’s membership rose. Wonaac and Alranz hastily helped pull together a coalition – Cohab (Committee Opposed to the Hospitals Amendment Bill) – to fight the bill.

But before that campaign could gather speed, AMAC suffered another setback. At 3:40 p.m. on 16 September 1974 – barely two weeks after introduction of the Wall Bill – several plainclothes police officers, led by Det. Sgt. Garry Lambert of Auckland’s Criminal Investigation Branch, headed for the clinic armed with a search warrant. On their arrival, Lambert spoke with the clinic’s administrator Toni Church, then by phone with Hunton, who reached the clinic soon after. ‘The police said they were going to take the files,’ Hunton said. ‘I said “Why?” They said they had a warrant for illegal abortion. I knew that that warrant was not right.’ Lambert later told the court he took possession of 546 medical files and 588 related index cards, and also had the clinic photographed.

Although no one ever came forward to claim responsibility for the complaints on which the police had acted, it was widely known that the seizure of the files was related to two statutory declarations against the clinic that had been supplied by Spuc to Norman Kirk on his deathbed. Spuc’s president at the time, Diana Mason, denied ‘most strongly’ that Spuc had had anything to do with the raid, and the head of the Christchurch branch, Keith Drayton, described the police action as ‘the greatest set-back our cause could have suffered’.

But Drayton also tacitly acknowledged that Spuc had played a role, writing in a newsletter to members that when the National Executive had met with Kirk, who was ‘obviously sympathetic to our submissions’, the prime minister had asked for concrete evidence. ‘In response to the late Prime Minister’s request, several statutory declarations were forwarded to him in support of our allegations … and they were in his briefcase when he died.’ Drayton went on to explain that a copy of the declarations ‘found its way to the Commissioner of Police and was then passed down the line until it reached the Auckland Police’. So, he continued, ‘unwittingly, we have been involved’. (Drayton explained that ‘numerous complaints’ had been made about the clinic from ‘various members of the public’ but until Spuc’s declarations showed up, ‘there had been no evidence’.)

That account was supported by the Minister of Police, Michael Connelly, who told Parliament in response to a question from George Gair that: ‘Four complainants have been responsible for the three written complaints made about the conduct of the Auckland Medical Aid Centre. Two of the complaints have been supported by sworn declarations, and, while only one of the complainants has referred to a specific case, many general complaints have been made to the Auckland police.’

The two statements in question were widely understood to have been from Herbert Green of National Women’s Hospital, and Nina Barry-Martin, a Spuc activist and founder of the Pregnancy Counselling Service. Green’s affidavit, dated 23 August 1974, followed a visit he had made to the clinic, and it included criticism of the clinic’s safety record and medical facilities (the operating table did not tilt, Green said, the premises were overcrowded, there was no confidentiality for patients, no oxygen tank in the recovery room, and the medical director and his staff were ‘naïve’). It also referred to one of the clinic’s patients, but it’s not known what was said about her.

Barry-Martin’s statement was based on telephone conversations she had had with clinic staff, during which she posed as a woman seeking an abortion. She called the clinic twice explaining that she was pregnant and was worried this would ruin a delayed honeymoon she and her husband had planned. According to Spuc’s newsletter, Barry-Martin ‘had been told by a woman believed to be a counsellor: “Well, let’s put it this way, we put through 99.99 percent. The other .01 percent is to make it look right.”’ Barry-Martin denied the telephone stunt had anything to do with the subsequent raid on the clinic. Her husband, Peter, told the New Zealand Herald immediately after the raid that the police action ‘vindicated’ Spuc’s concerns about the clinic. ‘Our stand has always been that the clinic should be closed until the Government decided its fate,’ he said.

As supporters of the clinic feared, the pretext for the raid was flimsy, and led to what was essentially a fishing expedition – or perhaps trawling is more apt – with testimony from the November 1975 Woolnough trial offering yet more details about the role at least one of the declarations had played. Under cross-examination by the defence counsel, L. W. Brown, QC, Det. Sgt. Lambert made the links clear:

Q (Brown): When you obtained your search warrant and later went to the clinic with it, you had knowledge of a declaration from a Dr Green did you not?
A (Lambert): I did yes.
Q: Had Dr Green referred to one particular patient of the clinic now known to be X?
A: He had yes.
Q: Did you know her name at that time?
A: No.
Q: May we take it that you went there without knowing the name of any particular patient?
A: That would be correct, yes.
Q: Having removed the files then, did you personally consider all of them?
A: To some degree yes.

Later in the trial, Lambert explained that of the 590 patient files, he and his colleague, Det. Sgt. John McKenzie, ‘retained those where appeared [sic] the lesser reasons for termination’. Lambert said that investigating the files was left to himself and McKenzie, and had involved interviewing the women concerned, the referring GPs, the counsellors and doctors the patient had seen at the clinic, the nurse present during the procedure, and the doctor who carried it out.

Meanwhile, after closing the clinic’s doors for three days because of the breach of patient confidentiality that the seizure entailed, Hunton and other members of the Trust decided to challenge the legality of the search warrant in court. In January 1975, more than three months after the raid, the Court of Appeal ruled the warrant invalid, stating that the magistrate who had issued it had no evidence ‘on which he could be satisfied that there was reason to believe that all the records should have been taken’.

Hunton described the police action as ‘terrible’ and blamed himself for the range of patient information taken. ‘There was all kinds of confidential stuff in there and part of it was my fault because I was a very full recorder of things,’ he said. ‘There were people who were drug takers and they’d had all kinds of personal information some of it not really to do with the abortion but we took those notes because we might be able to help them in some way. … This information was private but they just took the notes and when it was found that it was an illegal warrant we got our notes back but they had photocopied them which I think was a travesty of justice.’

Photo credit: G M Cookson

And what about the women? Those who later had to testify and, more immediately, those whose appointments were cancelled because of AMAC’s closure? A feature article ran in the Herald the day after the police raid based on interviews with those waiting at the clinic. One was a young woman – 17 or 18 years old – who had driven to Auckland with her mother from Tauranga that morning. ‘I had been going around with this boy for a long time,’ the teenager explained. ‘When this happened, he decided it was all over. His mother gave him the money to go to Australia. I got a letter from him from Australia saying that I should have the child. He’s a Catholic. He would not want me to do this but there’s no alternative.’ Of her own chances of now getting an abortion, she added: ‘We’ll get a motel and try the public hospital – whoever we can get. … I don’t know about going to Australia. I don’t know if Dad’s got enough money. I wouldn’t like to go over there. I don’t know anyone there.’

Others were adamant they’d find a way. ‘I definitely won’t have this child and you can print that,’ said one. ‘I’ve got an appointment with National Women’s,’ said another. ‘I know I won’t have a chance there.’ Still, she said she was determined. ‘My husband wouldn’t want me to go to a back-street abortionist but if it’s a case of having to I would go to one. I don’t care how I get it done but I’m not going to have another baby.’ This was the woman’s fifth pregnancy – and her husband had just had a vasectomy. ‘We thought he’d be clear,’ she said. ‘Apparently he wasn’t.’

Women subsequently interviewed by investigators suffered, too. ‘Women and doctors had been harassed by police,’ Wonaac reported, ‘and [Hunton] cited the case of a young woman in New Plymouth who had been interviewed by police in front of her parents, who knew nothing about the abortion.’

It was at least as much the breach of patient confidentiality as it was the targeting of the clinic that aroused the anger of the wider community. Diana Mason, the Spuc president, acknowledged the damage this had done to the movement and expressed her own disapproval. ‘As a doctor,’ she said, ‘I am personally very distressed and concerned that doctors’ records should be seized and their confidentiality threatened’. Some doctors took extreme steps to protect themselves, including, in the case of a physician in Tokoroa, deliberately not taking patient notes in abortion-related cases. ‘I have kept no written records on abortions since police seized files from another Tokoroa GP earlier this year,’ the doctor wrote in a letter attached to Alranz’s Royal Commission submission.

The Wall Bill, the clinic raid and the subsequent prosecution of one of the clinic’s doctors offer perhaps the starkest examples of the outsize role Spuc played in shaping New Zealand’s abortion laws and related social policy on issues like sex education and contraception. One reason for this influence was the concurrence of Spuc’s moral worldview with that of the generation of men holding political power in New Zealand at that time. The ‘establishment’ had put its head in the sand in response to the sweeping cultural change of the 60s, Wonaac’s Di Cleary wrote in the late 1980s, ‘far more so than in most other Western countries’. There is indeed ample evidence of this in the mass of transcripts from the Royal Commission’s hearings as well as the commission’s report itself and in the public comments of politicians. More concretely, New Zealand lagged behind comparable countries in sex education in schools, the availability of contraception to young people, and even permitting the distribution of information about it.

Again, the party that should have supported abortion law reform – Labour – was at odds with itself on the issue, leaving pro-choice advocates with no base inside the legislature from which to campaign, and gave Spuc and its allies a free hand to wield a moral veto on abortion even in the face of rapidly rising public support for reform. Myriad opinion polls were pointing to this trend, including an extensive survey of voters taken immediately after the 1975 general election by the political scientists Stephen Levine and Alan Robinson. They found a strong majority among all groups except Catholics (and an overall majority) supported a woman’s right ‘to an abortion if she wants one in the first 12 weeks of pregnancy’, and concluded that legislators ‘have been out of touch both with public opinion and with voters for their parties during Parliamentary discussions of the abortion issue’.

Three-quarters of MPs in 1972 through 1977 were aged 40 years and over, meaning they had come of age well before the challenges to traditional mores took hold. That such change was coming simply through the dying out of the ‘old generation’ of male politicians was made strikingly clear in Spuc’s own analysis, in 1981, of what it called its ‘worst-ever’ electoral outlook. ‘This year, eight of our pro-life politicians are retiring from Parliament,’ Marilyn Pryor told Humanity, ‘and five of them are being replaced with candidates who are pro-abortion. So on that score alone we stand to lose our pro-life majority.’

Among the anti-abortion movement’s achievements in the lead-up to the Wall Bill was message control. Spuc and its allies had quite successfully undercut the women’s rights approach to abortion liberalisation by framing ‘abortion on demand’ as radical and extremist, an effort bolstered by the fact that Alranz, too, distanced itself from the Wonaac platform. It became something for which almost no politician – liberal or conservative – dared express support (and neither did the public, when confronted with this wording).

Even though Wonaac took part in lobbying efforts over the Wall Bill and the clinic, politicians still considered them far too radical to take seriously, although the group did succeed in meeting with National’s Minister of Justice, Sir Roy Jack, and his Labour counterpart, Martyn Finlay. For the most part, Wonaac and other pro-choice feminists were confined to the activist arena, penned behind the barricades organising pickets, rallies and meetings. To be sure, those efforts paid dividends in the longer run, pushing the ‘woman’s right to choose’ argument closer to the mainstream. But in the shorter term, there was no stopping the well-organised, well-connected and even better funded anti-abortion juggernaut.

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